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Same-sex marriage and the Supreme Court: Key questions

By Alan Duke, CNN
updated 12:57 PM EDT, Tue March 26, 2013
Supporters of same-sex marriage wave flags and signs as they rally in front of the U.S. Supreme Court on Wednesday, March 27, in Washington. The justices heard two cases this week related to state and federal laws restricting same-sex marriage. Supporters of same-sex marriage wave flags and signs as they rally in front of the U.S. Supreme Court on Wednesday, March 27, in Washington. The justices heard two cases this week related to state and federal laws restricting same-sex marriage.
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(CNN) -- The U.S. Supreme Court hears arguments on Tuesday and Wednesday about the constitutionality of two laws in the same-sex marriage debate. These are the federal Defense of Marriage Act or DOMA and California's Proposition 8. The high court's decision, expected later this year, could have a profound impact on the definition of families in America.

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What case will the court consider Tuesday?

The Supreme Court justices will hear arguments concerning the appeal of a federal judge's decision that struck down California's Proposition 8.

Federal District Judge Vaughn Walker ruled in August 2010 that Proposition 8 violated the U.S. Constitution's due process and equal protection clauses, but he decided to keep it place while the decision was appealed.

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"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Judge Walker said. "Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."

A federal appeals panel upheld Walker's decision in February 2012, finding that it "works a meaningful harm to gays and lesbians" by denying their right to civil marriage. The appeals court left Proposition 8 in place pending a decision by the U.S. Supreme Court, which will hear arguments on Tuesday.

Both former California Gov. Arnold Schwarzenegger and current Gov. Jerry Brown refused to defend Proposition 8 in court, although a private group was allowed by the court to mount a defense.

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What is Proposition 8?

Proposition 8 defines marriage in California only as between a man and a woman.

California voters approved it as a ballot initiative by 52-48% in November 2008, less than six months after the California Supreme Court ruled that marriage was a fundamental right that must be extended to same-sex couples.

Its approval immediately ended same-sex marriages in the state, but a court ruled that marriage licenses for gay and lesbian couples issued before then were still valid.

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Where is same-sex marriage legal?

Nine states and the District of Columbia issue marriage licenses to same-sex couples, including three states -- Maryland, Washington, and Maine -- where voters approved it in ballot initiatives last year.

The other 41 states have specific laws blocking gays and lesbians from legally marrying. Of those states, 29 have added bans on same-sex marriage to their constitutions, including California.

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Nine of the states that don't allow same-sex marriage -- including California, New Jersey, Illinois, Delaware, Rhode Island and Hawaii -- provide legalized domestic partnerships and civil unions for same-sex couples. Those unions, in most cases, give couples the same rights of marriage under state law.

Share your reaction to the arguments

What's the other case that the Supreme Court will consider?

The high court is scheduled to hear arguments on Wednesday in the appeal of lower court decisions that struck down provisions in the Defense of Marriage Act restricting federal benefits to same-sex couples.

The Obama administration declined to defend it in court, but congressional Republicans, operating officially as the Bipartisan Legal Advisory Group of the U.S. House of Representatives, have taken over the role normally filled by the Justice Department's solicitor general.

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What is the Defense of Marriage Act?

Congress passed the measure and President Bill Clinton signed it into law in 1996. DOMA defines marriage as only between a man and a woman. It forbids the recognition of same-sex marriages nationwide and bars married gay and lesbian couples from receiving federal benefits.

The marriages of an estimated 120,000 gay and lesbian couples in the nine states and the District of Columbia that allow same-sex marriage are not recognized by the federal government as military spouses, social security beneficiaries or for other purposes.

Clinton recently renounced the law as "incompatible with our Constitution," saying "it was a very different time" when he put his signature on it.

It was seen at the time as a way to "defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more," Clinton wrote in an opinion piece this month for the Washington Post. Only 81 of the 535 members of Congress opposed it, he said.

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When will the court decide?

The justices could act between now and late June. But court observers expect it will be one of the last things done before they break for summer. It is not clear whether there will be separate rulings or one decision.

How has public opinion changed on same-sex marriage?

The number of Americans who say they support same-sex marriage has risen significantly over the past several years, according to a new a CNN/ORC International survey. While 40% of those polled in 2007 expressed support, the survey measured 53% support this month. The increase in support reflects a similar rise in the number of people who said they have a family member or close friend who is gay or lesbian.

How might the Supreme Court rule?

The legal team challenging Proposition 8 is calling for the Supreme Court to order a stop to marriage discrimination based on sexual orientation, calling it the "defining civil rights issue of our time." While gay rights groups hope the justices write a sweeping endorsement of marriage equality for homosexual couples, the high court could choose a narrow path.

The narrowest ruling might be to uphold the lower courts -- striking down the Defense of Marriage Act and Proposition 8 -- by deciding that the parties defending each do not have standing in the cases.

A side argument in the federal case centers on congressional Republicans taking up the cause after the Obama administration declined to defend the law. In the case of Proposition 8, a private group is defending the measure after the state government declined.

A rejection of those parties as defendants could skirt the central issues of same-sex marriage rights.

The justices could strike down DOMA's limits on federal recognition of same-sex marriage without upholding Proposition 8 and knocking down state-approved same-sex marriage bans. Or, they could decide that DOMA and Proposition 8 are both acceptable as they are, leaving the question of same-sex marriage to the political system.

Find out which states match your values with CNN's LGBT rights calculator

CNN's Bill Mears contributed to this report.

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